APPENDIX A
COMMITMENTS AND CONDITIONS
AVISTA CORPORATE REORGANIZATION
TO FORM A HOLDING COMPANY
(Docket UE-060273)
1.) Avista Corporation, doing business as Avista Utilities (hereinafter “Avista
Utilities”) will maintain its own books and records, separate from the books
and records of AVA Formation Corp. (herinafter “AVA”). The assets of
Avista Utilities and AVA and their subsidiaries or affiliates will be separately
accounted for. Avista Utilities’ financial books and records and state and
federal utility regulatory filings and documents will continue to be available to
the Commission, upon request.
2.) AVA and Avista Utilities will provide the Commission and other parties to
this Docket upon request, access to all books of account as well as all
documents, data, and records of their affiliated interests, which pertain to
transactions between Avista Utilities and its affiliated interests or which are
otherwise relevant to the business of Avista Utilities.
3.) AVA, Avista Utilities and all affiliates will make their employees, officers,
directors and agents available to testify before the Commission to provide
information relevant to matters within the jurisdiction of the Commission.
4.) AVA and Avista Utilities agree that one of its independent directors on each
Board of Directors will have had prior experience with respect to the
operation, financial analysis or regulation of the regulated gas or electric
utility industry.
5.) The Commission or its agents may audit the accounting records of AVA and
its subsidiaries that are the bases for charges to Avista Utilities, to determine
the reasonableness of allocation factors used by AVA to assign costs to Avista
Utilities and amounts subject to allocation or direct charges. AVA agrees to
cooperate fully with such Commission audits.
6.) Avista Utilities will file on an annual basis a copy of any affiliated interest
report filed in other jurisdictions.
7.) AVA and Avista Utilities will comply with all applicable Commission statutes
and regulations regarding affiliated interest transactions, including timely
filing of applications and reports.
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8.) Avista Utilities and AVA will not cross-subsidize between the regulated and
non-regulated businesses or between any regulated businesses, and shall
comply with the Commission’s applicable orders and rules with respect to
such matters.
9.) Nothing in these Conditions prevents Avista Utilities from having its own
subsidiaries. However, no AVA holding (i.e., a subsidiary held directly by
AVA or a subsidiary held indirectly by AVA, such as a subsidiary of an AVA
subsidiary) shall be conveyed to Avista Utilities or a subsidiary of Avista
Utilities, without prior Commission approval.
10.) Any proposed cost allocation methodology for the allocation of corporate and
affiliate investments, expenses, and overheads, required by law or rule to be
submitted to the Commission for approval, will comply with the following
principles:
a. For services rendered to Avista Utilities or each cost category subject to
allocation to Avista Utilities by AVA or any of its affiliates, AVA must be
able to demonstrate that such service or cost category is necessary to
Avista Utilities for the performance of its regulated operations, is not
duplicative of services already being performed within Avista Utilities,
and is reasonable and prudent.
b. Cost allocations to Avista Utilities and its subsidiaries will be based on
generally accepted accounting standards; that is, in general, direct costs
will be charged to specific subsidiaries whenever possible and shared or
indirect costs will be allocated based upon the primary cost-driving
factors.
c. AVA and its subsidiaries will have in place accounting systems adequate
to support the allocation and assignment of costs of executives and other
relevant personnel to Avista Utilities.
d. An audit trail will be maintained such that all costs subject to allocation
can be specifically identified, particularly with respect to their origin. In
addition, the audit trail must be adequately supported. Failure to
adequately support any allocated cost may result in denial of its recovery
in rates.
e. Costs which would have been denied recovery in rates had they been
incurred by Avista Utilities regulated operations will likewise be denied
recovery whether they are allocated directly or indirectly through
subsidiaries in the AVA group.
f. Any corporate cost allocation methodology used for rate setting, and
subsequent changes thereto, will be submitted to the Commission for
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approval if required by law or rule. An Intercompany Administrative
Services Agreement (IASA) will be developed that will include the
corporate and affiliate cost allocation methodologies. The IASA will be
filed with the Commission as soon as practicable after the closing of the
transaction. Approval of the IASA will be requested if required by law or
rule, but approval for ratemaking purposes will not be requested in such
filing. Amendments to the IASA will also be filed with the Commission.
g. AVA and Avista Utilities commit to use asymmetrical pricing (i.e., lower
of cost or market for transactions to Avista Utilities and higher of cost or
market for transactions from Avista Utilities) for affiliate charges or costs,
if a readily identifiable market for the goods, services or assets exists, and
if the transaction involves a cost of more than $100,000.
11.) Before December 31, 2009, neither Avista Utilities nor any of its subsidiaries
will enter into any electric or natural gas commodity transactions, either
physical or financial, with AVA or its other affiliates or subsidiaries,
including Avista Energy and Avista Power. This Condition does not affect
any other existing or future limitations on Avista Utilities’ energy transactions
or trades imposed by the Commission or otherwise.
12.) Avista Utilities and AVA agree, as a condition of the transaction, to adhere to
FERC’s Standards of Conduct (18 C.F.R. Part 358, as promulgated by Order
No. 2004, with modifications made by Order No(s) 2004-A and 2004-B)
governing relationships of, and the sharing of information between, Avista
Utilities’ transmission function with any energy and marketing affiliates, and
to adhere, as well, to any Code of Conduct governing relationships between
the wholesale merchant function of Avista Utilities and any affiliated power
marketer (as set forth in Avista’s market-based rate schedule on file with
FERC). Avista Utilities and AVA also agree, as a condition of the
transaction, to adhere to FERC’s rules governing “shared employees” with
respect to the merchant and transmission function, including maintaining a list
that identifies such shared employees. By agreeing to abide by these federal
regulations as a condition of the transaction, Avista Utilities and AVA agree
that they will not seek an exemption from such rules pursuant to 18 C.F.R. §
358.1(d), without prior Commission approval. The website at
www.oatioasis.com/avat/index.html (“FERC Standards of Conduct,” then
“Organizational Charts”) provides access to Avista Utilities’ departmental
organizational charts and identifies shared employees within those
departments.
13.) Avista Utilities will maintain separate debt and, if outstanding, preferred stock
ratings. Avista Utilities will maintain its own corporate credit rating, as well
as ratings for each long-term debt and preferred stock (if any) issuance.
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14.) Avista Utilities and AVA will not advocate for a higher cost of capital as
compared to what Avista Utilities’ cost of capital would have been, absent the
reorganization.
15.) Within three months of closing of the transaction, AVA and Avista Utilities
commit to obtain from one or more rating agencies written confirmation that
Avista Utilities will have its own corporate credit rating, separate and apart
from AVA, as well as separate ratings for each long-term debt and preferred
stock (if any) issuance, and that it will not otherwise be consolidated with
AVA for ratings purposes. If the ring-fencing provisions of this stipulation
are insufficient for purposes of obtaining a separate rating for Avista Utilities,
AVA and Avista Utilities will so notify the Commission and propose and
implement, upon Commission approval, such additional ring-fencing
provisions that are sufficient to secure separate corporate ratings for AVA and
Avista Utilities.
16.) AVA and Avista Utilities will exclude all costs of the formation of the
Holding Company from Avista Utilities’ utility accounts.
17.) AVA and Avista Utilities will provide the Commission and other parties to
this Docket upon request, with unrestricted access to all written information
provided by and to credit rating agencies that pertains to Avista Utilities or
AVA. AVA will also provide the Commission, and other parties to this
Docket upon request, with unrestricted access to all written information
provided by and to credit rating agencies that pertains to AVA’s subsidiaries
to the extent such information may potentially impact Avista Utilities.
18.) The capital requirements of Avista Utilities, as determined to be necessary to
meet its obligation to serve the public, will be given a high priority by the
Board of Directors of AVA and Avista Utilities.
19.) Avista Utilities agrees to request the Commission order described in RCW
80.08.040(4) for transactions subject to RCW 80.08 that Avista Utilities enters
into following the effective date of the Reorganization.
20.) Nothing in these restructuring commitments shall be interpreted as a waiver of
Avista Utilities’ or AVA’s rights to request confidential treatment for
information that is the subject of any commitments.
21.) Recognizing the importance of increasing the equity component of its capital
structure, Avista Utilities agrees that it will increase the actual utility equity
component to 40% by June 30, 2008. Should it fail to do so, Avista Utilities
agrees that in the next general rate case filed by it after June 30, 2008, it will
use the most current actual utility equity ratio (derived from the most recent
calendar quarter), in lieu of a hypothetical capital structure. To the extent that
Avista Utilities incurs increased power supply or purchased gas costs that are
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not recovered in retail rates in a timely manner, it would impair Avista
Utilities’ ability to build equity. Accordingly, the calculations to determine
whether the target is met will be adjusted for any additional deferred power
supply or purchased gas costs recorded on its books after January 1, 2007,
which have been approved for recovery, but over a period longer than
proposed by the Company. The calculations to determine whether the target
has been met will also be adjusted for any changes to Generally Accepted
Accounting Principles (GAAP) effective subsequent to December 15, 2006.
22.) AVA and Avista Utilities commit that Avista Utilities will not make any
dividends to AVA if Avista Utilities’ common equity ratio is below 30% of its
Total Adjusted Capital, without Commission approval. AVA and Avista
Utilities also agree that Avista Utilities will not make any dividends to AVA
that will reduce Avista Utilities’ common equity capital below 30% of its
Total Adjusted Capital, without Commission approval. At such time as the
actual utility equity component reaches 40% (see Condition 21, above), Avista
Utilities will notify the Commission should any dividends to AVA reduce
Avista Utilities’ common equity below 35% of its Total Adjusted Capital.
The notice will explain the principal causes of the situation. These
percentages will be adjusted, as necessary, to account for any changes to
Generally Accepted Accounting Principles (GAAP) effective after December
15, 2006, as well as for the treatment of deferred power supply or purchased
gas costs, as referenced in Condition 21, above. For purposes of calculating
the numerator of the percentage, common equity will not include any portion
of Avista Utilities preferred stock issued and outstanding. Avista Utilities’
Total Adjusted Capital is defined as common equity, preferred equity, long-
term debt, short-term debt and capitalized lease obligations.
23.) Through December 31, 2016, Avista Utilities will provide notice to the
Commission, and to other parties to this Docket upon request, when it
increases the amount of any dividend payment by 10% or more over the
previously-paid dividend.
24.) In the event of a credit rating downgrade of Avista Utilities, Avista Utilities
will give notice to the parties in this Docket and schedule a meeting with Staff
within one month of the downgrade to discuss the reason for the downgrade
and Avista Utilities’ plans going forward.
25.) On or before April 1, 2008, and on or before every anniversary date thereafter,
Avista Utilities will file with the Commission, and will provide to other
parties to this Docket upon request, an annual report for the preceding
calendar year, in which it describes its compliance with Conditions 21, 22 and
23, concerning the equity component of the capital structure and payment of
dividends.
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26.) Avista Utilities is required to apply to the Commission for approval of
security issuances pursuant to RCW Chapter 80.08. Avista Utilities will not
seek an exemption from this requirement for twelve months following the
closing of this transaction. Staff will evaluate the “all-in-cost” of issuances
for inclusion in rates and the cost of any debt issuance recognized for
ratemaking will not be higher than it otherwise would have been without the
corporate reorganization.
27.) AVA and Avista Utilities will provide the Commission and other parties to
this Docket upon request, access to corporate minutes including Board of
Director’s minutes and all committee minutes, along with any related source
documents that are relevant to the business and risk analysis of Avista
Utilities. Avista Utilities and the party requesting access will establish an
agreeable procedure to review these confidential documents in Spokane,
Washington.
28.) AVA and Avista Utilities will provide the Commission, and other parties to
this Docket upon request, access to operational, internal and risk audit reports
and documentation. Avista Utilities and the party requesting access will
establish an agreeable procedure to review these confidential documents upon
request.
29.) AVA and Avista Utilities will notify the Commission, and other parties to this
Docket upon request, of all publicly announced proposals for divestiture, spin-
off, or sale of any integral Avista Utilities function. AVA and Avista Utilities
will also file for Commission approval of divestiture, spin-off, or sale of any
integral Avista Utilities function, which is subject to WUTC jurisdiction. This
condition does not limit any jurisdiction the Commission may have.
30.) Avista Utilities or AVA will notify the Commission, and other parties to this
Docket upon request, prior to implementation of plans by Avista Utilities or
AVA: (1) to form an affiliate for the purpose of transacting business with
Avista Utilities’ regulated operations; (2) to commence new business
transactions between an existing affiliate and Avista Utilities; or (3) to
dissolve an affiliate which has transacted substantial business with Avista
Utilities.
31.) Avista Utilities or AVA will notify the Commission, and other parties to this
Docket upon request, subsequent to AVA’s or Avista Utilities’ board approval
and as soon as practicable following any public announcement of: (1) any
acquisition of a regulated or unregulated business representing 5 percent or
more of the capitalization of AVA; or (2) the change in effective control or
acquisition of any material part or all of Avista Utilities by any other firm,
whether by merger, combination, transfer of stock or assets.
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32.) Upon request, Avista Utilities will provide to the Commission, and other
parties to this Docket on an informational basis, credit rating agency news
releases and final reports regarding Avista Utilities when such reports are
known to Avista Utilities and are available to the public.
33.) AVA and Avista Utilities commit that in the event that Avista Utilities obtains
a loan from its parent company or any affiliated company, Avista Utilities
will, in any subsequent rate proceeding demonstrate that the debt obligation
interest, terms, and conditions are comparable to or less than what Avista
Utilities could have obtained in the market at the time the debt was obtained
by Avista Utilities, that the loan is on reasonable terms and without markup to
the holding company’s cost of funds, and that the debt procurement will not
interfere with any ring-fencing mechanisms that secure the utility.
34.) AVA and Avista Utilities will enter into an agreement that incorporates the
ring-fencing provisions set forth herein, which agreement shall be binding
upon AVA and Avista Utilities, and their respective Boards of Directors. This
agreement will be filed with the Commission within three months of closing
of the transaction. AVA and Avista Utilities commit that no amendments,
revisions or modifications will be made to this agreement or any ring-fencing
provisions without prior Commission approval for the sole purpose of
addressing the ring-fencing provisions.
35.) Within three months of closing of the transaction, AVA commits to obtain a
non-consolidation opinion that demonstrates that the ring-fencing around
Avista Utilities is sufficient to prevent Avista Utilities from being pulled into
an AVA bankruptcy. AVA commits to promptly file such opinion with the
Commission. If the ring-fencing provisions of this agreement are insufficient
to obtain a non-consolidation opinion, AVA agrees to promptly undertake the
following actions:
a) Notify the Commission of this inability to obtain a non-
consolidation opinion.
b) Propose and implement, upon Commission approval, such
ring-fencing provisions that are sufficient to prevent Avista
Utilities from being pulled into an AVA bankruptcy.
c) Obtain a non-consolidation opinion.
36.) Unless another process is provided by statute, Commission regulations or
approved Avista Utilities’ tariff, AVA and Avista Utilities encourage the
Commission to use the following process for administering the commitments.
The Commission should give AVA and Avista Utilities written notification of
any violation by either company of the commitments made in this application.
If such failure is corrected within ten (10) business days for failure to file
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reports, or five (5) business days for other violations, the Commission should
take no action. The Commission shall have the authority to determine if the
corrective action has satisfied or corrected the violation. AVA or Avista
Utilities may request, for cause, an extension of these time periods. If AVA
or Avista Utilities fails to correct such violations within the specified time
frames, as modified by any Commission-approved extensions, the
Commission may seek to assess penalties for violation of a Commission order,
against either AVA or Avista Utilities, as allowed under state laws and
regulations.
37.) The Applicants agree that the Commission shall have an opportunity and the
authority to consider and adopt in Washington any commitments or conditions
to which the Applicants agree or with which the Applicants are required to
comply in other jurisdictions, even if such commitments and conditions are
agreed to after the Commission enters its order in this docket. To facilitate the
Commission’s consideration and adoption of the commitments and conditions
from other jurisdictions, the Parties urge the Commission to issue an order
accepting this Stipulation as soon as practical, but to reserve in such order the
explicit right to re-open to add commitments and conditions accepted or
ordered in another state jurisdiction.
38.) AVA and Avista Utilities acknowledge and agree that the Commission retains
its authority over Avista Utilities in the event of either voluntary or
involuntary bankruptcy proceedings affecting either AVA or Avista Utilities,
and that such authority is not preempted by applicable bankruptcy laws. Such
Commission authorities are acknowledged to expressly include regulation of
the issuance of securities (RCW 80.08), the mortgage or pledge of assets
(RCW 80.12), and the disposition or sale of assets by Avista Utilities (RCW
80.12). Notwithstanding any bankruptcy, reorganization, or other insolvency
proceedings with respect to AVA, AVA agrees it shall not acquiesce, petition
or otherwise invoke or cause Avista Utilities to invoke the process of any
court or government authority for the purpose of commencing or sustaining a
case against Avista Utilities under any federal or state bankruptcy, insolvency
or similar law, or ordering the winding up of the affairs of or the liquidation of
Avista Utilities (and will oppose, to the extent permitted by law, any such
process), so long as Avista Utilities remains otherwise financially healthy.
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